Opinion
DOCKET NO. A-4776-13T3
01-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.T.G., Defendant-Appellant, and V.M.G., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.G.G., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.T.G. (Elizabeth Burke, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raska, Assistant Attorney General, of counsel; Kathryn E. Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.G.G. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-19-14. Joseph E. Krakora, Public Defender, attorney for appellant J.T.G. (Elizabeth Burke, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raska, Assistant Attorney General, of counsel; Kathryn E. Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.G.G. (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant J.T.G. appeals a judgment terminating his parental rights to his daughter, J.G.G. He contends that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the third and fourth prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.
Based on our review of the record and applicable law, we are satisfied that the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendant's parental rights. Accordingly, we affirm.
I.
We incorporate the factual findings in Judge William Anklowitz's comprehensive forty-nine page written opinion, and highlight the following.
J.G.G. was born in April 2006, to defendant and V.M.G. On January 2, 2008, the Division received an anonymous referral that J.G.G. was being neglected, lacked proper nutrition and housing, and that her parents were using drugs. The Division caseworker who responded to the motel where the family was living "observed the room to be fairly clean" and "did not observe any drug paraphernalia or substances." J.G.G. was eating a taco and was "clean and appropriately dressed and slightly above average height and weight for her age." There was a small amount of canned and boxed food, water, soda, milk, and juice in the home. Both parents admitted to attending Jersey Shore Addiction Services, and defendant advised that he had a heroin problem in the past. Both denied using drugs in front of the child.
V.M.G. executed an identified surrender of her parental rights during the course of the guardianship trial and is not involved in this appeal.
The Division continued to monitor the family over the next few months, but encountered difficulty because they moved without providing any contact information. Consequently, the Division was unable to confirm whether defendant was drug-free and attending treatment. Defendant admitted that, although he knew the Division was trying to contact him, the family nevertheless moved and again failed to provide contact information to the Division. After an extensive search, the case was closed with the notation "that the family is still in missing status."
On July 31, 2012, the Division received another referral from the Substance Abuse Initiative (SAI), reporting substance abuse and mental health concerns regarding V.M.G. Defendant told the Division that he and V.M.G. were currently in recovery and were not using drugs, despite V.M.G.'s admission of drug use. Defendant also acknowledged that J.G.G. suffered from chronic constipation, which had required medical treatment.
On August 30, 2012, the Division received another referral expressing concern about J.G.G.'s medical issues involving her intestines and urinary tract, her hygiene, and her diet. Defendant informed the Division that he planned to follow-up with a pediatric gastroenterologist at St. Christopher's Specialty Pediatrics Hospital. The Division learned that even though J.G.G. was now six years old, she had not yet been enrolled in school. She knew only five letters of the alphabet, could not count to ten, was not fully potty trained, and had severe tooth decay, a urinary tract infection, and severe constipation.
In October 2012, the Division was advised by New Horizon treatment center that defendant tested positive for cocaine on six occasions, missed counseling sessions, and appeared to be "in full relapse." V.M.G. had also relapsed, and tested positive for cocaine and opiates. The Division then performed an emergent removal, as authorized by N.J.S.A. 9:6-8.29, to ensure J.G.G.'s safety and well-being. The Division was granted custody of J.G.G. on October 16, 2012, and defendant was granted visitation twice per week at Drenk Reunification Services (Drenk). In November 2012, the Division permitted defendant to have unsupervised visits with J.G.G. at his home, and offered individual counseling and parenting classes at Drenk. However, due to concerns about the parents' ongoing drug use, unsupervised visits ended in January 2013.
Defendant began services at Drenk and was offered supervised visits on a weekly basis, which he cancelled on many occasions allegedly due to illness, transportation problems, and eviction proceedings. J.G.G. was upset by these cancelled visits, and thought defendant was not doing what was required of him. On the occasions that defendant attended visits, he gave J.G.G. inappropriate food that aggravated her intestinal condition, and also gave her candies despite her dental issues. Although there were some positive family interactions during the supervised visits at Drenk, the parents failed to comply with Drenk's requirements and thus, the visits at Drenk were suspended. The Division then referred the family to PEI Kids so that visits could continue, but defendant again failed to consistently attend.
On February 26, 2013, defendant was scheduled for a substance abuse evaluation in an effort to provide him with continuous treatment. Defendant admitted to substance abuse starting at eighteen years old, which included abuse of alcohol, marijuana, prescription pain medications, cocaine, and heroin. He also admitted to convictions for the sale, distribution, and manufacturing of illicit substances, resulting in three years' jail time. He was diagnosed with opioid dependence, for which he was encouraged to attend Level II Intensive Outpatient treatment at New Horizon even though his Medicaid coverage had lapsed. The Division agreed to pay New Horizon for these treatment services from May 3 to July 5, 2013. In June, a Division caseworker was informed by New Horizon that defendant was not attending his group counseling and that a hold would be placed on his methadone, for which the Division had already paid $1920. Defendant was eventually discharged from the program.
In the interim, J.G.G. began participating in separation and loss counseling through the Children's Home Society. During the course of therapy, J.G.G. acknowledged that she sometimes felt sad after she visited with her parents, and she expressed fear from incidents with them that occurred both before removal and during subsequent visits. She stated that she "worries because her parents don't understand that it's OK for her to like her foster parent[s] and them both." She also expressed disappointment that her parents made promises they could not maintain and that defendant would not do what was needed to be a good father. J.G.G. told a Division caseworker that she was happy when the unsupervised home visits ended because she felt unsafe in her home.
On October 1, 2013, the court entered a Permanency Order approving the Division's plan to terminate parental rights, followed by adoption, because defendant and V.M.G. had unremediated substance abuse problems and failed to comply with drug treatment and services. Defendant continued to buy drugs on the street, and subsequently stopped attending the WorkFirst program which was required to maintain his Medicaid benefits.
The Division filed a complaint for guardianship on November 15, 2013. During the ensuing trial, the Division's expert, Amy Becker-Mattes, Ph.D., opined that defendant was incapable of parenting J.G.G. because of his untreated mental health and medical issues, his failure to follow through on promises, his unresolved substance abuse problems, his inability to care for himself, and his lack of stability. She found defendant had "significant psychopathology," with mood disorders, anxiety, depression, and a personality disorder with narcissistic, depressive and dependent features. He was "unreliable, and impulsive and moody," used poor judgment, and acted without thinking first.
Dr. Becker-Mattes acknowledged that J.G.G. loves defendant, and that they share a special relationship that is "in many ways . . . warm and positive" with a "really lovely" rapport. Defendant entertained J.G.G. and did "a very good job" overall. Additionally, although she found that defendant had a high abuse potential score, he demonstrated "an adequate level of empathy with children, as well as an awareness of alternatives to corporal punishment." She found that "there is a loving, fun interaction between [J.G.G.] and her father, but there is this tendency to make promises that can't be kept." Overall, Dr. Becker-Mattes concluded that J.G.G.'s bond with defendant was more negative than positive, compared with the positive and healthy relationship J.G.G. maintained with her foster parents.
Dr. Becker-Mattes further testified that J.G.G. did not desire to return home to her father and expressed fear at the possibility of doing so. J.G.G. "believed that she couldn't be placed with her parents because they do bad things." Dr. Becker-Mattes testified that J.G.G.'s profound awareness of her parents' problems "takes away from her being able to grow up healthfully."
Dr. Becker-Mattes noted that in the bonding session with the foster parents and J.G.G., the foster parents "expressed interest in adopting her." She found that the foster parents are "emotionally and mentally and cognitively available to that child, and that's the hallmark of a healthful parent-child relationship." Further, the foster parents are "committed" to J.G.G. and "put in a lot of time and effort." Based on her evaluations, Dr. Becker-Mattes supported adoption as a permanent goal for J.G.G., even if not by her current foster parents, and opined that defendant was incapable of parenting J.G.G. at any time in the foreseeable future.
At the conclusion of the trial, Judge Anklowitz determined in his cogent written opinion that the Division satisfied its burden by proving clearly and convincingly all four prongs of N.J.S.A. 30:4C-15.1(a), and entered the judgment under review.
II.
On appeal, defendant contends that the trial judge misapplied only the third and fourth prongs of N.J.S.A. 30:4C-15.1(a). Specifically, he argues that the Division failed to offer him adequate services, and that the trial court erred in failing to consider alternatives to termination and in concluding that termination would not cause J.G.G. more harm than good.
In his merits brief, defendant does not contend that he did not harm the child or that he was able to eliminate the harm that led to her removal. As a result, we need not address prongs one and two of N.J.S.A. 30:4C-15.1(a). See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (noting "[a]n issue not briefed on appeal is deemed waived").
In reviewing a decision by the trial court to terminate parental rights, we give "deference to family court[s'] fact[-] finding" because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). The judge's findings of fact are not disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
A.
The judge's conclusion that the Division satisfied its burden under the third prong is supported by substantial credible evidence in the record. Pursuant to N.J.S.A. 30:4C-15.1(a)(3), the Division is required to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and the court must consider alternatives to termination of parental rights. This third "prong of the [best interests of the child] standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999).
Here, the record demonstrates that the Division made reasonable efforts to provide defendant with parenting classes, substance abuse counseling, and psychological and bonding evaluations. In finding prong three satisfied, the judge reasoned:
The Division initially made considerable efforts to reunite [J.G.G.] with [defendant]. He was provided with various forms of visitation throughout the course of this litigation. The Division referred him to Drenk for visitation, individual and group counseling and parenting skills classes. He was terminated
for noncompliance. The Division then referred [defendant] to PEI Kids for visitation. That agency had concerns about [defendant's] substance abuse and inability to adhere to [J.G.G.'s] nutritional recommendations.
The Division referred [defendant] to substance abuse evaluations for treatment recommendations. He was already attending New Horizon through welfare when the Division became involved. The Division provided financial assistance to [defendant] to remain in that program. The Division paid for his methadone maintenance for a period of time and paid for his doctor's visit. When it became apparent that [defendant] needed inpatient treatment, the Division referred [him] to SAI for a referral to Straight and Narrow. [Defendant] was provided with bus passes throughout this litigation as well as additional transportation through PEI Kids. The Division provided psychological and bonding evaluations for treatment recommendations.
Also, pursuant to the third prong, the judge considered and ruled out any potential relatives as placement options for J.G.G. The Division presented credible evidence that the two individuals proffered by defendant were not viable alternatives. Defendant's sister, N.W., was initially offered as a placement resource, but was later withdrawn by defendant and V.M.G. because she lived too far away. At defendant's request, the Division also assessed his former girlfriend, K.K. However, her home was determined to be unsuitable because it was located in a senior community that did not permit children. Moreover, the judge found K.K.'s testimony incredible, and noted that it "left the [c]ourt with the feeling that any arrangement with her as caretaker would be illusory and that she would place [J.G.G.] back into the care of her parents."
B.
The judge's conclusion that the Division satisfied its burden under the fourth prong of the best interests test is also supported by substantial credible evidence.
N.J.S.A. 30:4C-15.1(a)(4) "requires a determination that termination of parental rights will not do more harm than good to the child[ren]." K.H.O., supra, 161 N.J. at 354-55. "A child's need for permanency is an important consideration under the fourth prong." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). It is well-established that to satisfy this prong, the State should present a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with . . . the natural parents . . . ." Ibid. (internal quotation marks omitted).
Here, the Division presented expert testimony that defendant was not a viable parenting option for J.G.G. nor was he likely to become one in the foreseeable future. The court found Dr. Becker-Mattes credible, and that her testimony "made it clear that termination of [defendant's] parental rights will not do more harm than good."
While Dr. Becker-Mattes indicated that defendant's relationship with J.G.G. had some positive elements, she concluded that it had "a lot of negative elements and detrimental elements that are pulling on [J.G.G.'s] healthful development." In contrast, J.G.G. enjoyed a "healthful" and "positive" relationship with her resource parents. Further, defendant had unremediated substance abuse problems, and could not comply with the Division's services or the requirements put in place to enable him to develop a relationship with J.G.G. Consequently, Dr. Becker-Mattes supported adoption as a permanent goal for J.G.G., even if not by her current foster parents.
Pursuant to Rule 2:6-11(f), the Division has advised us that J.G.G.'s placement has changed since trial. The change in placement does not alter our conclusion that J.G.G. requires a level of permanency that the trial judge found defendant is unable to provide.
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Additionally, J.G.G. expressed her fears and concerns to her therapist about living with her father, and relayed worries about her safety in his home. She also felt that defendant's inability to parent her was her fault, and was continuously disappointed by his inability to fulfill his promises. Dr. Becker-Mattes noted that J.G.G. "has become very aware that there are problems that her parents have that have made it — as much as they love her [-] it's made it impossible for them to take adequate care of her and full responsibility for her."
In summary, Judge Anklowitz did not err in concluding that the best interests of J.G.G. require a safe, stable, and permanent home. He correctly terminated defendant's parental rights.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION